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THIRD AMENDMENT
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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Third Amendment dated as of September 29, 1998 to Amended and Restated
Revolving Credit Agreement (the "Third Amendment"), by and among FLEXTRONICS
INTERNATIONAL USA, INC., a California corporation (the "Borrower"), BANKBOSTON,
N.A. (formerly known as The First National Bank of Boston) and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Existing Banks"), Bank of America National Trust
and Savings Association (the "New Bank" and, together with the Existing Banks,
the "Banks") and BankBoston, N.A. in its capacity as agent for the Banks (the
"Agent"), amending certain provisions of the Amended and Restated Revolving
Credit Agreement dated as of January 14, 1998 (as amended and in effect from
time to time, the "Credit Agreement") by and among the Borrower, the Existing
Banks and BankBoston, N.A. as agent for the Banks (the "Agent"). Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, the New Bank wishes to become a party to the Credit Agreement,
and certain of the Existing Banks wish to assign certain portions of their
Revolving Credit Loans, Letter of Credit Participations and Commitments under
the Credit Agreement to the New Bank and certain Existing Banks; and
WHEREAS, the Borrower has requested, and the Banks have agreed upon the
terms and conditions described herein, that the aggregate Commitments of the
Banks to extend credit under the Credit Agreement be increased to
$57,142,857.13;
WHEREAS, the Borrower and the Banks have agreed to modify certain other
terms and conditions of the Credit Agreement as specifically set forth in this
Third Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ss.1. Amendment to Section 1 of the Credit Agreement. Section 1.2(d) of
the Credit Agreement is hereby amended by deleting the text of ss.1.2(d) in its
entirety and substituting in place thereof the words "A reference to any Person
includes its permitted successors and assigns, with the provisions of this
Credit Agreement be binding upon and inuring to the benefit of such Person and
its permitted successors and assigns."
ss.2. Amendment to Section 5 of the Credit Agreement. Section
5.1.1(b)(ii) of the Credit Agreement is hereby amended by inserting immediately
after the words "all Unpaid Reimbursement Obligations" the words "plus all
Bankers' Acceptances outstanding".
ss.3. Amendment to Section 8 of the Credit Agreement. Section 8 of the
Credit Agreement is hereby by inserting the following immediately after the end
of the text of ss.8.23:
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8.25. Year 2000 Compliance. The Borrower and its Subsidiaries have
reviewed the areas within their businesses and operations which could be
adversely affected by, and have developed or are developing a program to
address on a timely basis, the "Year 2000" (i.e. the risk that computer
applications used by the Borrower or any of its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999).
Based upon such review, the Borrower reasonably believes that the "Year
2000" will not have any materially adverse effect on the business or
financial condition of the Borrower or any of its Subsidiaries.
ss.4. Amendment to Section 12 of the Credit Agreement. Section ss.12.2 of
the Credit Agreement is hereby amended by inserting immediately after the words
"such Letter of Credit" which appear in ss.12.2 the words "and to accept and/or
purchase any Bankers' Acceptances".
ss.5. Amendment to Schedule 1 of the Credit Agreement. Schedule 1 of the
Credit Agreement is hereby amended by deleting such schedule in its entirety and
substituting in place thereof the Schedule 1 attached hereto.
ss.6. Assignment and Acceptance.
(a) For the purposes of the assignment contemplated herein, the
provisions of ss.19.1 of the Credit Agreement are hereby waived and the parties
hereto hereby consent and agree to such assignment.
(b) Each of Comerica Bank and The Sumitomo Bank of California
(collectively, the "Assignors") hereby sells and assigns to each of BankBoston,
N.A., Bank of America National Trust and Savings Association, and ABN Amro Bank
N.V. (collectively, the "Assignees"), and each Assignee hereby purchases and
assumes from each Assignor, a certain percentage of each such Assignor's rights
and obligations under the Credit Agreement as of the effective date hereof,
including, without limitation, such percentage interest in each such Assignor's
Commitment as in effect on the effective date, and the outstanding amount of the
Revolving Credit Loans, Letter of Credit Participation and Bankers' Acceptance
Participation owing to each Assignor on the effective date and the Revolving
Credit Note held by each Assignor (such interest being hereinafter referred to
as the "Assigned Portion") such that, after giving effect to the assignments
contemplated hereby, the respective Commitments, Commitment Percentages of each
Assignor shall be zero, and the respective Commitments and Commitment
Percentages of each Assignee (after giving effect to the increase in the Total
Commitment contemplated by this Third Amendment) shall be as set forth on
Schedule 1 attached hereto, and each Assignee shall have that percentage
interest in all Revolving Credit Loans, Letter of Credit Participations and
Bankers Acceptance Participations. Notwithstanding any term or provision of
ss.19 of the Credit Agreement to the contrary, the execution and delivery hereof
by each Assignor, each Assignee, the Agent and the Borrower shall constitute an
Assignment and Acceptance delivered in accordance with the Credit Agreement and
shall be effective in respect of the assignment contemplated hereby.
(c) each Assignor (i) represents and warrants (as to itself only and not
as to the other Assignor) that as of the date hereof, its Commitment and
Commitment Percentage is sufficient to give effect to this Assignment and
Acceptance; (ii) makes no representation or warranty, express or implied, and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any of the other Loan
Documents or any other instrument or document furnished pursuant thereto or the
attachment, perfection or priority of any security interest or mortgage, other
than that it is the legal and beneficial owner of the
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interest being assigned by it hereunder free and clear of any claim or
encumbrance; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower or
any of its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of its obligations under the Credit
Agreement or any of the other Loan Documents or any other instrument or document
delivered or executed pursuant thereto; and (iv) requests that in connection
with such assignment as set forth herein the Borrower exchange the Revolving
Credit Notes of each Assignor for new Revolving Credit Notes, each dated as of
the effective date hereof payable to the order of each Assignee in the principal
amount of the Commitment set forth opposite each Assignee's name on Schedule 1
to the Credit Agreement as amended hereby and each such new note shall be deemed
to be a "Revolving Credit Note" under the Credit Agreement.
(d) each Assignee (i) represents and warrants (as to itself only and not
as to any other Assignee) that it has received a copy of the Credit Agreement
and the other Loan Documents, together with copies of the financial statements
referred to in ss.9 of the Credit Agreement and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this agreement, that it is an Eligible Assignee under the Credit
Agreement and that all acts, conditions and things required to be done and
performed have occurred prior to the execution, delivery and performance of this
assignment, and to render the same the legal, valid and binding obligation of
each such Assignee, enforceable against it in accordance with its terms, have
been done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) agrees that it will, independently and without reliance
upon any Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; and
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, and agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the other Loan Documents are required to be performed by it
as a Bank.
(e) Upon the effectiveness of the assignment contemplated hereby, each
Assignor shall return to the Borrower its Revolving Credit Note, marked
"Cancelled".
ss.7. Addition of New Bank.
(a) Each of the Agent and the Borrower consent to the addition of the New
Bank as a Bank hereunder such that, after giving effect thereto and as of the
effective date hereof, the New Bank shall be a party to the Credit Agreement and
shall have the rights and obligations of a Bank thereunder.
(b) The New Bank (a) represents and warrants that (i) it is duly and
legally authorized to enter into this Amendment, (ii) the execution, delivery
and performance of this Amendment do not conflict with any provision of law or
of the charter or by-laws of the New Bank, or of any agreement binding on the
New Bank, (iii) all acts, conditions and things required to be done and
performed and to have occurred prior to the execution, delivery and performance
of this Third Amendment, and to render the same the legal, valid and binding
obligation of the New Bank, enforceable against it in accordance with its terms,
have been done and performed and have occurred in due and strict compliance with
all applicable laws; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to ss.9 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this
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Amendment; (c) agrees that it will, independently and without reliance upon the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (e) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank.
ss.8. Conditions to Effectiveness. This Third Amendment shall not become
effective until the Agent receives a counterpart of this Third Amendment,
executed by the Borrower, the Guarantors and the Banks, as well as new Revolving
Credit Notes payable to each Assignee and the New Bank in the amount set forth
opposite such Bank's name on Schedule 1 hereto.
ss.9. Representations and Warranties. The Borrower hereby repeats, on and
as of the date hereof, each of the representations and warranties made by it in
ss.8 of the Credit Agreement, and such representations and warranties remain
true as of the date hereof (except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date),
provided, that all references therein to the Credit Agreement shall refer to
such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the Borrower of this
Third Amendment and the performance by the Borrower of all of its agreements and
obligations under the Credit Agreement as amended hereby are within the
corporate authority of each the Borrower and has been duly authorized by all
necessary corporate action on the part of the Borrower.
ss.10. Ratification, Etc. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Security Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Third Amendment shall be read and construed as a
single agreement. All references in the Credit Agreement or any related
agreement or instrument to the Credit Agreement shall hereafter refer to the
Credit Agreement as amended hereby.
ss.11. No Waiver. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of the Borrower
or any rights of the Agent or the Banks consequent thereon.
ss.12. Counterparts. This Third Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
ss.13. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as a document under seal as of the date first above written.
FLEXTRONICS INTERNATIONAL USA, INC.
By:____________________________________
Title:
BANKBOSTON, N.A.
By:____________________________________
Title:
ABN AMRO BANK N.V.
By: ___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: ___________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS, SAN
FRANCISCO BRANCH
By: ___________________________________
Name:
Vice President
PARIBAS
By: ___________________________________
Name:
Title:
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COMERICA BANK
By: ___________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: ___________________________________
Name:
Title:
SUMITOMO BANK OF CALIFORNIA
By: ___________________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: ___________________________________
Name:
Title:
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RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents to
the foregoing Third Amendment as of September 29, 1998, and agrees that each of
the Guarantees dated as of January 14, 1998 from each of the undersigned
Guarantors remain in full force and effect, and each of the Guarantors confirms
and ratifies all of its obligations thereunder.
FLEXTRONICS INTERNATIONAL LTD.
By:______________________________________
Title:
FLEXTRONICS INTERNATIONAL (UK) LTD.
By:______________________________________
Title:
FLEXTRONICS MANUFACTURING (HK) LTD.
By:______________________________________
Title:
FLEXTRONICS SINGAPORE PTE. LTD.
By:______________________________________
Title:
FLEXTRONICS HOLDING (UK) LTD.
By:______________________________________
Title:
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FLEXTRONICS MALAYSIA SDN BHD
By:______________________________________
Title:
FLEXTRONICS INTERNATIONAL
MARKETING (L) LTD.
By:______________________________________
Title:
FLEXTRONICS HOLDINGS AB
By:______________________________________
Title:
FLEXTRONICS INTERNATIONAL
SWEDEN AB
By:______________________________________
Title:
ASTRON GROUP LIMITED
By:______________________________________
Title:
DTM PRODUCTS CORPORATION
By:______________________________________
Title:
SCHEDULE 1
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Banks/Commitments
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Commitment
Revolving Percentage of Revolving Credit Loans,
Credit Loan Bankers' Acceptances and Letters
Banks Commitment of Credit
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BankBoston, N.A. $12,380,952.38 21.6666667%
Domestic Lending Office:
100 Federal Street, 01-08-06
Boston, Massachusetts 02110
Attn: High Technology Division
Eurodollar Lending Office:
Same as above
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ABN Amro Bank N.V. $9,761,904.76 17.0833333%
Domestic Lending Office:
101 California Street, Suite 4550
San Francisco, CA 94111
Eurodollar Lending Office:
Same as above
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Bank of Nova Scotia $9,523,809.52 16.6666667%
Domestic Lending Office:
580 California Street, 21st Floor
San Francisco, CA 94104
Eurodollar Lending Office:
Same as above
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Bank of America National Trust and $9,523,809.52 16.6666667%
Savings Association
Domestic Lending Office:
555 California Street
San Francisco, CA 94104
Eurodollar Lending Office:
Same as above
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Banque Nationale de Paris $7,142,857.13 12.5000000%
Domestic Lending Office:
180 Montgomery Street, 3rd Floor
San Francisco, CA 94104
Eurodollar Lending Office:
Same as above
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Paribas $5,952,380.95 10.4166667%
Domestic Lending Office:
101 California Street, Suite 3150
San Francisco, CA 94104
Eurodollar Lending Office:
Same as above
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Industrial Bank of Japan $2,857,142,86 5.0000000%
Domestic Lending Office:
555 California Street, Suite 3110
San Francisco, CA 94104
Eurodollar Lending Office:
Same as above
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Totals: $57,142,857.13 100%
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